Mandy Johnston: Faith in another agency of State in tatters
WHERE did it all go right for Seán FitzPatrick? In the rather unassuming office building at number 16 Parnell Square, it seems. Only a stone’s throw from Michelin-star restaurant Chapter One, poised at the top of O’Connell Street, is the Office of the Director of Corporate Enforcement (ODCE). The agency of the State charged with prosecuting company law offenders.
It was in these relatively modest offices that a team of public servants, accountants and lawyers assembled to build the State’s case against former Anglo Irish Bank chief Mr FitzPatrick.
A criminal case that would wither in flames and ultimately find Mr FitzPatrick not guilty of hiding millions of euros in loans from the bank’s auditors, in the longest criminal trial in the history of the State.
Vitriol spewed with inevitable venom in the wake of the ruling by Judge John Aylmer, directing the jurors in Dublin’s Circuit Criminal Court to acquit the former Anglo boss on all 27 counts against him.
The virulence against Mr FitzPatrick shifted, however, as the public, and particularly our political system, searched for someone to blame for the travesty.
There was only really one contender in this knock-out affair. In the wake of Judge Aylmer’s ruling, it was obvious to all and sundry that sending the ODCE in to craft a case against Mr FitzPatrick and Anglo Irish Bank was about as effective as asking a spectator in an All-Ireland final to stick on an auld jersey and become a real player for a day.
The simple truth is the ODCE was simply not proficient in the skills, expertise or experience needed to forensically construct a case of this nature and complexity.
Moreover, the practices and methods its offices undertook to elicit a conviction, could and should leave the operations of the ODCE itself open to public investigation. Our faith in another agency of the State shredded.
Nine years have passed since the onset of the recession in 2008. While the Irish economy has slowly creaked back to life, there are still thousands of Irish families leading lives of quiet desperation without jobs, without resources, without confidence in the State system.
As we meander tentatively back into economic stability, we try to forget the recent hardship. As a nation of individuals who are struggling to move on, we still hanker for a villain. It is extremely improbable that anyone who has journeyed through this recession will ever really forgive the banks for their role in the economic and social tsunami suffered. Banks hold a special place in our hearts.
But who to blame? Institutions or individuals?
Was the collapse of our banking system simply a result of negligence of risk-taking that led to an imprudent but innocent failure to maintain adequate reserves for a rainy day? If the banking collapse was due, at worst, to a lack of caution, then the sad reality is criminal law has no role to play in the aftermath. For criminal prosecution is directed at intentional misconduct and nothing less.
But public opinion has never taken the position that all the top executives involved in the events leading up to the financial crisis were entirely innocent.
In our heart of hearts, we suspect that fraudulent practices and dubious mortgages were portrayed as sound risks and packaged into ever more obscure financial products with deliberate intent. This is what has become known as “wilful blindness” or “conscious disregard”.
The fierce and fiery weapon called criminal prosecution is directed at intentional misconduct and nothing less. In a criminal case, one not only has to prove false statements but also needs to establish that the offender intended to commit a crime.
Crucially, all of the evidence for the case should have been collected and assembled with a view to securing a criminal prosecution. Every piece of the jigsaw viewed with the interpretation of how things would play out it court and not how it would play out in front of cameras.
There is only one way to become proficient in those skills; it requires training and years of experience. That is why professional expertise is required to pursue matters in the courts through forensic investigations via tried and tested methods.
Much criticism of An Garda Síochána has been levelled of late for a litany of different failings. Difficulties at management level have convulsed national debate but we should not forget that there are a number of things that our police service does really well. Bringing cases forward to the DPP for prosecution is one of those things. An arduous and onerous process that at times can frustrate an impatient public anxious to see crimes punished swiftly.
In this respect, gardaí only move towards presenting something to the Director of Public Prosecutions when they have built a credible case on solid foundations.
Unlike the ODCE, gardaí understand what standard of proof is required for criminal trials versus civil matters. Perhaps if the interviewing skills and information gathering tactics of gardaí had been deployed more in this case by the ODCE, the outcome may have been very different.
From the beginning to the unedifying anti-climax of this complex case, in total there were only 11 gardaí involved in the investigation. At the early stages, it seemed that the ODCE followed standard protocol by sending seconded gardaí to take statements from witnesses. However, the ODCE “quickly lost sight of that” and began drafting statements through A&L Goodbody and solicitors for Ernst & Young (EY).
On a very basic level, neither the ODCE nor
‘The burden of blame for the collapse of this case was clear. What should have been a slam dunk for the ODCE and the State became a spectacular own goal’
the solicitor for Anglo’s auditors EY had the experience required to conduct interviews in an appropriate manner. Even more worryingly, they failed to understand that copying and pasting is not a legitimate prosecutorial tool.
Rather than enlist the professional assistance to conduct the level of forensic examination required, the ODCE and EY worked together to bend and mould the rules to suit their cause and their case. A tactic that seems particularly ironic given that its modus operandi was to expose malpractice and flagrant disregard for rules and regulations.
Convulsed by its own enthusiasm for the job at hand and its opportunity to deliver the biggest prosecution in the history of the State, a ‘Bonfire of the Vanities’ mentality engulfed the ODCE. Sadly, its aptitude did not live up to its intentions.
Sometimes the subtleties of judicial pronouncements can confuse the public, but not this time. The burden of blame for the collapse of this case was clear. What should have been a slam dunk for the ODCE and the State became a spectacular own goal.
The prosecution had not proved the case to the standard required that would have allowed Judge Aylmer to let the charges go to the jurors for them to decide the matter.
Companies do not commit crimes; only their employees do. That is why the court of public opinion will never get the scapegoat or villain it desires. We have given up holding out for a hero a long time ago – like the 126 days of this trial, it’s just an exercise in mindless futility.